UVicSPACE: Research & Learning Repository _____________________________________________________________ Faculty of Human and Social Development Faculty Publications _____________________________________________________________ Canadian Child Hostages Overseas: The Ultimate Commodity Working Paper Catherine Morris & Gail Davidson (editor) August 2017 N.B.: Original cover with photograph removed This article was originally published at: http://www.lrwc.org/canada-canadian-child-hostages-overseas-the-ultimate- commodity-working-paper-by-catherine-morris/ Citation for this paper: Morris, Catherine (2017). Canadian Child Hostages Overseas: The Ultimate Commodity. Working Paper. Retrieved from Lawyers’ Rights Watch Canada website: http://www.lrwc.org/canada-canadian-child-hostages-overseas-the-ultimate- commodity-working-paper-by-catherine-morris/ Canadian Child Hostages Overseas: The Ultimate Commodity Written by Catherine Morris, Research Director, Lawyers’ Rights Watch Canada Edited by Gail Davidson, Executive Director, Lawyers’ Rights Watch Canada Copyright 2017 This report has been produced for public use. Other than for commercial purposes, LRWC encourages reproduction and distribution, with acknowledgment to LRWC and to the author. Lawyers’ Rights Watch Canada Vancouver BC www.lrwc.org, [email protected] Lawyers’ Rights Watch Canada (LRWC) is a Canadian organization of lawyers and other human rights defenders who conduct research and education on implementation of international standards for protection of the independence and integrity of the judiciary and legal profession, access to justice and the security of human rights defenders around the world. LRWC has special consultative status at the United Nations (UN) Economic and Social Council (ECOSOC). The cover photograph is adapted from a screenshot selected from the captors’ propaganda video of the family released in December 2016. The screenshot was modified by Elizabeth Morris, etherwork.net, so as to respect the privacy and dignity of the children. The image is used with permission of Joshua Boyle’s family. At the time of publication, Joshua Boyle and Caitlan Coleman and the children remain incommunicado in captivity in an unknown location. Please do not reproduce or circulate this image without the express, written permission of Catherine Morris or the parents of Joshua Boyle. Catherine Morris may be reached at [email protected]. 2 NGO in Special Consultative Status with the Economic and Social Council of the United Nations www.lrwc.org; [email protected]; Tel: +1 604 738 0338; Fax: +1 604 736 1175 3220 West 13th Avenue, Vancouver, B.C. CANADA V6K 2V5 Canadian child hostages overseas: The ultimate commodity Catherine Morris, BA, JD, LLM UN Liaison Director, Lawyers’ Rights Watch Canada 25 August 2017 Contents Acronyms and Abbreviations ......................................................................................................... ii 1. Introduction, purpose, and overview: A paradox of rights without remedies ..................... 1 1.1 Introduction and purpose..................................................................................................... 1 1.2 Overview of facts and concerns .......................................................................................... 2 2. Timeline, October 2012 to July 2017: The ongoing “Kafkaesque nightmare”................... 3 3. State duties to provide remedies for serious violations of human rights: International law obligations of Canada, the US, Afghanistan, and Pakistan ................................................. 7 3.1. Summary of violations that compel States to provide remedies to the hostages ............... 8 3.1.1. Threat to the right to life ................................................................................................... 10 3.1.2. Deprivation of the right to liberty ..................................................................................... 11 3.1.3. Torture and other cruel, inhuman or degrading treatment or punishment ........................ 12 3.1.4. Hostage-taking and the international crime of enforced disappearance ........................... 14 3.1.5. Hostage-taking and human trafficking: “The ultimate commodity” ................................. 16 3.2. The challenge posed by armed non-state actors ................................................................ 19 3.3. The right of access to justice and remedies ....................................................................... 19 3.4. Canada’s policy framework for consular protection in light of international human rights law ..................................................................................................................................... 21 4. Recommendations ............................................................................................................. 31 i Acronyms and abbreviations CAT: Convention against Torture and Other Cruel, Inhuman or … over 500 million children Degrading Treatment or Punishment. Canada, US, Afghanistan and are victims of violence, Pakistan are States Parties to this treaty. exploitation and abuse annually… We believe, like CEDAW: Convention on the Elimination of All Forms of you, that all children … have Discrimination against Women International. Canada, Afghanistan the right to grow up in safety. and Pakistan are States Parties to this treaty. The US has signed it. - UNICEF Canada CRC: Convention on the Rights of the Child. Canada, Afghanistan, and Pakistan are States Parties to this treaty. The US has signed it. “States Parties shall ensure to Erga omnes: is a Latin term meaning “towards all" and refers to the maximum extent possible legally binding obligations owed toward all of humanity. See note 72. the survival and development of the child.” Hostages Convention: Convention against the Taking of Hostages. - Convention on the Rights of the Canada, US, Afghanistan and Pakistan are Parties to this treaty. Child ICCPR: International Covenant on Civil and Political Rights. Canada, the US, Afghanistan and Pakistan are Parties to this treaty. Canada’s consular services: Ambiguous & discriminatory ICESCR: International Covenant on Economic, Social and Cultural Rights. Canada, Afghanistan and Pakistan are States Parties to this Canada’s practices for recovery treaty, and the US has signed it. of hostages have been criticized as lacking in Jus cogens: (from Latin: compelling law; English: peremptory norm) coordination, leadership, refers to certain fundamental, overriding principles of international resources and effectiveness. law, from which no derogation is ever permitted. See note 71. Concerns have also been raised about discrimination and Trafficking Protocol: Protocol to Prevent, Suppress and Punish ambiguity in the provision of Trafficking in Persons, Especially Women and Children, consular services to kidnapping Supplementing the UN Convention against Transnational Organized victims, and apparent picking Crime. Canada, the US and Afghanistan are States Parties to this and choosing whom they help treaty. Pakistan has not ratified or signed it. and how. This has resulted in release and rescue of some UDHR: Universal Declaration of Human Rights hostages and the injury and deaths of others. UN WGAD: UN Working Group on Arbitrary Detention. - Lawyers’ Rights Watch Canada UN WGEID: UN Working Group on Enforced and Involuntary Disappearances VCCR: Vienna Convention on Consular Relations ii Canadian child hostages overseas: The ultimate commodity Catherine Morris, BA, JD, LLM1 UN Liaison Director, Lawyers’ Rights Watch Canada2 25 August 2017 1. Introduction, purpose, and overview: A paradox of rights without remedies 1.1 Introduction and purpose What are Canada’s responsibilities when its citizens’ rights to life and liberty are violated abroad? This report explores Canada’s obligations under international human rights law as they apply to a current case of Joshua Boyle, age 34, a Canadian citizen from birth, and his wife, Caitlan Coleman, 31, a citizen from birth of the United States of America (US) and their two infant children both born in captivity (the Boyle/Coleman family). Kidnapped in Afghanistan in October 2012, the parents have been held hostage by the Taliban- affiliated Haqqani Network for nearly five years and the two children since birth. The parents have no military or government ties and no connection to the Taliban or any involvement in armed conflicts in the region. During their captivity, the Boyle/Coleman family have had no access to remedies despite ongoing grave violations of their internationally protected human rights to life and liberty, and to freedom from torture, enforced disappearance, and hostage-taking. The rights of the Boyle/Coleman family’s relatives in Canada and the US have also been seriously violated by this prolonged hostage-taking. The purpose of this report is to provide Canadian officials with analyses and recommendations on provision of remedies to Canadian hostages abroad, particularly the Boyle/Coleman family. After a brief overview, the report sets out a timeline (Section 2 below), followed by a summary of Canada’s international human rights obligations to ensure the rights to life, liberty, freedom from torture and ill-treatment, protection from enforced and involuntary disappearance and hostage- taking, and access to effective remedies when these rights are violated (Section 3 below). The report identifies international human rights obligations3 of four countries involved in the situation 1